188 F. 931 | U.S. Circuit Court for the District of Southern New York | 1911
The complainants, citizens of the state of New York, as executors of the last will and testament of Horace B. Stillman, deceased, who was a resident of the state of New York at the time of his death, bring this bill against the Chicago & Northwestern Railway Company for a mandatory injunction compelling it to transfer at its transfer office in the city of New York into their names as executors shares of its capital stock standing on the books of the company in the name of their decedent of the market value of $33,600, and also to pay to them the difference between the market value of the stock on the day transfer was demanded and its highest market value between that day and judgment.
The bill alleges that the defendant is incorporated under the laws of the states of Illinois, Wisconsin, and Michigan, and that it has refused to make the transfer until the executors shall produce and file with it a waiver or consent to the transfer from the state of Wisconsin.
The defendant demurs on the grounds that:
(1) This court has no jurisdiction of the cause of action in equity.
(2) That the bill is without equity.
(3) That the complainants have a full, adequate, and complete remedy at law.
(4) That the amount in controversy is not over the sum of $2,000 without interest and costs.
(5) That the state of Wisconsin or the proper officers thereof are necessary parties.
It is conceded, or I think must be conceded, that the stock in question is property within the state of Wisconsin subject to transfer tax. Matter of Palmer, 183 N. Y. 238, 76 N. E. 16. Section 1087 of the Inheritance Tax Wisconsin Statutes Supplement, pp. 438 to 450, subd. 2, provides that the following property of a nonresident within the state shall be subject to the tax:
“(2) When a transfer is by will or intestate law, of property within the state or within its jurisdiction and the decedent was a nonresident of the state at the time of his death.”
Section 11, subd. 1, provides:
“(1) If a foreign executor, administrator, or trustee shall assign or transfer any stock or obligations in this state standing in the name of a decedent or in trust for a decedent, liable to any such tax, the tax shall be paid to the treasurer of the proper county or the * * * State Treasurer on thé transfer thereof.”
The defendant rests its right to refuse a transfer on subdivision 2 of the same section :
“(2) No safe deposit company, bank, or other institution, person, or persons holding securities or assets of a nonresident decedent, shall deliver or trans*933 fer the same to the executors, administrators, or legal representatives of said decedent, dr upon their order or request unless notice of the time and place of such intended transfer be served upon the * ® * Attorney General at least ten days prior to the said transfer; nor shall any such safe deposit company, bank or other institution, person or persons deliver or transfer any securities or assets of the estate of a nonresident decedent without retaining a sufficient portion or amount thereof to pay any tax which may thereafter be assessed on account of the transfer of such securities or assets under the provisions of this act unless the * * * Attorney General or public administrator consents thereto in writing; and it shall be lawful for the Attorney General or public administrator, * * * personally or by representative, to examine said securities or assets at the time of such delivery or transfer. Failure to serve such notice or to allow such examination or to retain a sufficient portion or amount to pay such tax as herein provided, shall render said safe deposit company, trust company, bank, or other institution, person or persons, liable to the payment of the tax due upon said securities or assets in pursuance of the provisions of this act.”
“(5) Every such tax shall be and remain, a lien upon the property transferred until paid and the person to whom the property is transferred and the administrators, executors, and trustees of every estate so transferred, shall be personally liable for such tax until its payment.”
Although the bill describes the defendant’s refusal to transfer as a conversion of the stock valued at $33,600, it does not ask for relief on that ground. On the cóntrary, it asks for the transfer of the stock and incidentally for the difference between its market value on the day transfer was demanded and its highest market value between that day and judgment. The amount of this difference is not, and in the nature of things cannot be, stated.
The fact that the controversy is about a thing worth $33,600 does not necessarily show that this sum is the amount in controversy. The defendant does not claim the stock nor any right to control it, nor does it impugn the complainants’ title in any way. The certificate is only evidence of the ownership of the stock, and, while the defendant’s refusal to issue a new one to them may prevent the complainants from making a good stock exchange delivery in case they sell the stock, it does not affect their title as owners at all. It would be as impossible to fix the value of this right of transfer on the books of the corporation as it is to fix the value of the right to register a trade-mark.
The demurrer is sustained, with leave to the complainants to amend on payment of costs within 20 days after service of notice of entry of order hereon. Otherwise the bill to be dismissed.
